Citation Nr: 21071030 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-41 523 DATE: November 29, 2021 REMANDED For the appeal period prior to June 16, 2016, entitlement to a rating in excess of 20 percent for lumbosacral strain, to include degenerative disc disease and foraminal stenosis, (lumbar spine disability), is remanded. For the appeal period post June 16, 2016, entitlement to a rating in excess of 40 percent for lumbosacral strain, to include degenerative disc disease and foraminal stenosis, (lumbar spine disability), is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2019 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. This matter was previously before the Board in January 2020. The issues of entitlement to a rating in excess of 20 percent for lumbosacral strain, for the appeal period prior to June 16, 2016 and in excess of 40 percent thereafter were denied. The Veteran appealed the January 2020 decision to the Court of Appeals for Veterans Claims (CAVC). In a September 2020 Joint Motion for Partial Remand (JMPR), the Board's decision with respect to these issues was vacated and remanded based on inadequate reasons and bases because the March 2012 VA examination was inadequate. The JMPR also found the Board failed to discuss the Veteran's regular use of a brace and failed to address TDIU as it was reasonably raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008) (explaining that the Board must consider all issues raised by the claimant or reasonably raised in an appeal). As such, the Board will proceed with a remand. 1. For the appeal period prior to June 16, 2016, entitlement to a rating in excess of 20 percent for lumbosacral strain, to include degenerative disc disease and foraminal stenosis, (lumbar spine disability) 2. For the appeal period post June 16, 2016, entitlement to a rating in excess of 40 percent for lumbosacral strain, to include degenerative disc disease and foraminal stenosis, (lumbar spine disability) The September 2020 JMPR noted that Board erred because the Board failed to address the adequacy of the March 2012 VA back examination. Specifically, the CAVC noted, To be adequate, an examination must address the functional loss due to both flare-ups and repeated use over time. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The March 2012 examination indicated that Appellant reported flare-ups as "a burning sensation to his lower back with shooting pain [and] his back locks up with prolonged standing or bending." [R. at 1588 (1587-97)]. The examiner also noted that Appellant "claims increased lower back pain with prolonged sitting, standing and walking." [R. at 1596]. However, the examiner did not otherwise address functional loss due to flare-ups or repeated use over time. [R. at 1587-97]. Therefore, remand is warranted for the Board to provide an adequate statement of reasons or bases addressing the adequacy of the March 2012 VA back examination. As the evidence indicates the March 2012 VA examination does not address functional loss due to flare-ups or repeated use over time, the Board finds a remand is warranted. 3. Entitlement to TDIU is remanded. The September 2020 JMPR noted that Board erred by not adjudicating a reasonably raised claim for a TDIU as a component of the claim for a higher rating for the service-connected lumbar spine disability. Specifically, the CAVC noted, Appellant testified at the August 2019 Board hearing that he was unable to work due to his back disability: "I couldn't get employment or anything. That medication wouldn't allow me to have employment and then the pain." [R. at 591 (588-98)]. Remand is warranted for the Board to address whether the issue of entitlement to TDIU was reasonably raised by the record. Based on the foregoing, and pursuant to the September 2020 JMPR, the Board finds that the issue of entitlement to a TDIU is raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Moreover, because a decision on the remanded increased rating claim could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim of entitlement to a TDIU is therefore required. The matters are REMANDED for the following action: 1. Obtain any ongoing VA or private treatment records. Should they exist, associate them with the claims file. 2. Schedule the Veteran for an examination with the appropriate specialist in order to determine the severity of his lumbar spine disability. The examiner should interview and examine the Veteran, conduct all indicated evaluations, studies, and tests deemed necessary, and offer a rationale for any opinion expressed. The claims file should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. In addition, the examiner should provide an opinion on whether pain could significantly limit functional ability during flare-ups or on repetitive use over a period of time, and, if possible, provide an estimation of the degree of additional range of motion loss due to pain on use or during flare-ups. Further, the examiner should state, in degrees, whether and at what point during range of motion testing the Veteran experiences pain. 3. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.